given by Bracton and Britton and Fortescue's foolish Etimology There must be a Prerogative somewhere in all Places There is a Prerogative in Kings by the Law of Nations and the Use of it is to shew Mercy to reward Virtue 'T is the Law that punisheth not Kings and because there is no written Equity in Criminal or Capital Matters therefore the Seat of Mercy is placed by the Fountain of Justice This is no doubt properly and truly to be God's Vicegerent Thus with us Potest Rex ei lege suâ Dignitatis Spelman Gloss Praerogativa Regis Condonare si velit Mortem promeritam Spoken of Edward the Confessor Though there is a sort of Equity by the Letter of our Law in the Case of Manslaughter making an allowance for the Passions of Men and the King's Pardon of Murder hath been question'd it looks like a Dispensing with the Positive Law of God It is certain he can't change the Punishment There are several Prerogatives and Flowers of the Crown some of Use some for Ornament but founded also upon Reason The King hath all Mines of Gold and Silver Treasure Trove Escheats of all Cities May take his Creditors into Protection till he be satisfied with Preference May take Body Lands and Goods of Debtor c. because the King's Treasure is supposed to be for the publick Benefit May make any Foreign Coin lawful Money of England by Proclamation for Exigencies may require it The King may dig in the Subjects House not Mansion-House or Barn for Salt-petre being for the Defence of the Nation Kings only can have Parks and Chaces and not Subjects without his License So Swans in Royal Rivers because they are stately Creatures and Royal Game and become the Honour of a King The King shall be said to be Founder though another join in the Foundation c. because 't is for his Honour The King shall have Ward though the Lands were held of him by Posteriority because the King's Title shall be preferr'd and not put in Competition with the Subject So he shall not be Tenant in common i. e. He shall have all because a Subject ought not to be equal with him in any thing There are also several other Franchises which by the Policy of our Law belong to the Crown And we say in our Law That the King's Prerogative is part of the Law of England and comprehended within the same We say also That the King hath no Prerogative but that which the Law of the Land allows him And 't is certain he is restrained in several respects by our Law as in a Politick Capacity Letting pass those Distinctions and Cant in Coke's 7th Rep. Calvin's Case of the King's Prerogative As he hath Advantages so he hath his Disadvantages also at least Kings or others for them are apt to call them so Thus he can't by Testament dispose of the Jewels of the Crown 't is doubted whether he may legally pawn them though it be said he may give them by his Letters-Patents 't is against the Honour of the Crown The Law is so jealous of the King's Honour that it hath preferr'd it before his Profit He hath no Prerogative against Magna Charta cannot take or prejudice the Inheritance of any Can 't send any man out of the Realm against his Will because he hath the Command of the Service of the Subjects only for Defence of the Realm Can 't lay any new Impost on Merchandises Can take none but usual and Ancient Aids and Taxes Can 't dispense with Statutes made for Publick Good or against Nusances or Mala in se Can do no Wrong Can 't alter the Law Common or Ecclesiastical Nor Statute-Law or Custom of the Realm by Proclamation or otherwise Nor create any Offence thereby which was not an Offence before Can 't grant a Corporation any new Jurisdiction to proceed by Civil Law because it may deprive Subjects hereby of Privilege of Trial. The King can't put off the Offices of Justice of a King is not suppos'd to be ill-affected but deceiv'd and impos'd upon and abus'd Eadem presumitur mens Regis quae est juris c. But the late Sticklers for Arbitrary Power have found out a Plea for the Absoluteness of Kings which as they think carries some Face of an Objection against the fettering their Prerogative Say they At this rate a King can never exert himself as he ought to do any Glorious Action or as King James the II d phras'd it to Carry the Reputation of a Kingdom high in the World He cannot extend his Conquests c. No matter whether he can or not Neither can he oppress his Subjects It is sufficient for Kings especially for a King of Great Britain to be on the Defensive by Land neither do I believe any of our Kings ever got any thing by extending their Dominions 'T is no Argument to us in our Situation if the matter were so But this Notion is a Mistake For never did any King do extraordinary Feats where he made War and carried it on against the Inclinations or without the Consent of his People The Fights with the Dutch at Sea in the Reign of King Charles the II d is a sufficient Instance of this Nature We fought against the Grain and without an Enemy as Sir William Temple observes Nor shall we find in History that any King hath continued his enlarged Bounds where he carried on Imposts and Taxes by Violence at Home to the Impoverishing of his People Let the End of this present French King be observ'd who seems to stand an Exception at present but he stands a very ticklish one Besides the true Interest and Advantage of our Island lies another way To maintain the Sovereignty of the Seas to promote Trade and Traffick c. And to this purpose the King hath the highest Prerogative in this Element He may press Men for this Service which he cannot for any Foreign Expedition by Land He hath Customs Tunnage and Poundage c. Yet not these without Consent in Parliament and some of our Kings have made but a scurvy Experiment in attempting to take them without it Whence then doth come this Title to Arbitrary Absolute Power It must be the Child of Conquest or some other Paramount Inherent Right And to this purpose it is objected That by our Laws we acknowledge several Rights and Privileges of the Subject to be Concessions from Kings and we yield the Lands to be holden immediately or mediately of the Crown c. This is pretended to sound in Conquest rather than Compact or to be founded on the Patriarchal Right And Sir Robert Filmer especially is pleasant upon Sir Edward Coke for this He says If the first Kings were chosen by the People as many think they were then surely our Forefathers were a very bountiful if not prodigal People to give all the Lands of the whole Kingdom to their Kings with liberty to them to keep what they pleas'd and to
give the Remainder to their Subjects clogg'd and incumbred with a Condition to defend the Realm This is but an ill sign of a Limited Monarchy by Original Constitution or Contract At this rate a Man who writes with the Fancy of a Government may expose any thing even himself But why doth this necessarily follow May not several Privileges and Powers be lodged in the Crown for Conformity and Dignity of Government by Consent And so May not Estates or the Lands of a Kingdom be divided by Contract with the acknowledgment of the Tenure and to express the Service How come Lands to Escheat to the Crown for they are forfeited for Treason I mean of Cities but that there is no Heir How comes the King to have the Year Day and Waste of Lands which Escheat to the Lord By what Law if not of Contract To say they moved from the King and were Limitations of his Bounty is as much suppos'd on the other hand and gratis dictum If he had virtually all Lands Why not all Goods c. too No man will say that If he had I confess there would be then no use of Parliaments But to proceed the King by his Prerogative may Call and Prorogue and Dissolve Parliaments By what Law had he this Prerogative If not by Law of Compact and Consent of Necessity to avoid Confusion for if he could Command his Subjects Purses c. there could not otherwise be any Original use of them He might and would no doubt have call'd and made use of only a Privy or Cabinet Council or Cabal for after this way of Inference no King would certainly have Clogg'd himself with the impertinent Formalities of a Parliament their Predecessors were very Weak or Prodigal to Clip their own Wings and give their Subjects a share in the Legislative Power This is but an ill sign of an Original Absolute Arbitrary Power And 't was upon this pretence though those Gentlemen don't care to own it That they would have endeavoured to Disengage their King from the use of Parliaments and would conclude That the King might chuse whether he would ever call any or not at least in this Form Thus they would beg the Question and presume the Consequence on their side because equally absurd The King may Proclaim War c. Does it follow therefore that he may make it without other Heads and Hands Thus they confound the Executive and Legislative Authority They say Scribling is a sign of a Licentious Age and some think of a Decaying State too Ought not some Creaturs to be Muzled There were many odd sort of extravagant Books published on Subjects of this Nature in the Reign of King Charles the II d not without Reason as we may suppose But all these violent pursuits in both Extremes are suspitious and where all Parties mean nothing but the Publick Good there 's nothing of this nature worth contending for And whoever will reflect on the Circumstances and Occasions or Times of such Publications and the advancing these high-flown Notions with a little pains of Comparison will easily see through the Mystery of their Policy It is very extraordinary That Subjects make Kings Conquerors in spight of their Teeths and against their own Professions and Declarations on purpose to make themselves Slaves by their own Consequence though this really is neither the true Signification nor Import as Mr Spelman makes appear in his Glossary let them take it in their own sense but we may assure our selves they did not intend to inslave themselves They tell us That William the I st was a Conqueror and therefore we were all Slaves c. though at other times Force and Success will make no Right Yet afterwards they also tell us when we come to insist on our Rights as Subjects That Magna Charta was obtained by Force c. What then So had the Crown been before it seems by them Either the People of England had some Legal Rights before the Conquest or not If they had as is confess'd 't was time to endeavour the Restoring of them If William the I st were an Intruder and came in by Force of Arms only he was but a Successful Usurper and the People being under a Force could not lose their Rights If he came in with pretence of Title Title continued them in their Rights and either way was justifiable I am engaged in this matter before I am aware and beyond my first intention and I shall meet with these Gentlemen anon But not to forestal you in the History I can't avoid a Hint upon those times being upon Magna Charta and that being by that Act declared to be Declaratory of the Fundamental Rights and Common Laws of the Realm To shew the Arts of Debauching Kings and the end of such Attempts in one previous Instance Hubert de Burgo as you may see in Sir Edward Coke's Preface to Magna Charta c. meaning to make his step to Ambition which ever Rideth without Reins persuaded and humoured that King That he might avoid that Charter of his Father King John by Duress and his own great Charter and Charta de Foresta also for that he was within Age whereupon the King got one of the great Charters and that of the Forest into his Hands and by his Councel unjustly Cancell'd both the said Charters though this Hubert de Burgo was Primier Witness of all the Temporal Lords to both the said Charters whereupon he became in high Favour with the King c. But soon after for Flattery and Flatterers have no sure Foundation he fell into the King's heavy Indignation and after many fearful and miserable Troubles he was Justly and according to Law Sentenc'd by his Peers in open Parliament and as justly Degraded of the Dignity which he had unjustly obtained c. So that other Notion of Paternal Right is as Extraordinary This takes a short way and makes Mankind Rebels from the Creation or from the Flood Who could have imagined That this Paternal Dominion from Adam could have been inferr'd from that Expression of the Psalmist The earth hath he given to the children of men Which Sir Robert Filmer learnedly says Doth shew that the Title of Government comes from Fatherhood Methinks it seems a more plausible and literal Argument to Exclude Fathers or to lay them aside as they do in some Countries at such an Age Why have not this Party a scruple of Conscience about all other Variations of Government even by God himself At this rate they ought to procure Masses for the Souls of their Progenitors who lived in the Heptarchy It is certain no body living under any Commonwealth can hope to be Saved as remaining in a continued state of Rebellion Thus they create a double Obligation on Men and harrass their very Souls between their Natural and Political Parents in virtue of the Fifth Commandment But as much a Frenchman as he seems to be I know not how he will excuse
't in Lewis the Son of Philip the French King the People in general not living like Men nor dying like Christians nor having Chrstian Burial the whole Nation one dismal Scene of Horrid Misfortunes Behold the Effect of Violated Faith and Arbitrary Oppression But it is no great Credit to Prerogative That this King who had no very good Title unless it were Election was the first Vindicator of it in a violent manner And asserted the Right to Absolute Power with the same Justice as he did That to the Crown in the time of Arthur his Nephew who was the Undoubted Heir By these means he brought himself and People into Troubles which never ended but with his Life HENRY III. HERE we may perceive as also in another Reign or two hereafter how the Irregularities of a Father or Predecessor involve the Son and Successor in a Remainder of Troubles and the Nation also in their intail'd Misfortunes For although those Lords as Sir Richard Baker tells us who had been constant to the Father notwithstanding his Faults were also more tender of the Son who was Innocent and so stuck to him That by the Interest chiefly of William Marshal Earl of Pembroke who married his Aunt they prevail'd so that Young Henry was Crown'd King yet he could not come to the Crown upon the square but was forc'd to do Homage to Pope Innocent for his Kingdom of England and Ireland when he took his Coronation-Oath and to take an Oath to pay the Church of Rome the Thousand Marks which his Father had granted And though after his Coronation most of the Lords maintain'd him in his Throne preferring their Natural Allegiance to Henry before their Artificial Obligations to Lewis and Beat or Compounded the latter out of the Kingdom yet this King Henry so soon as he was got out of Protection and came to Administer the Government himself immediately in gratitude Cancels and Annuls the Charters which he had granted on pretence forsooth of Minority altho' he had taken an Oath as well as the Legate Guallo and the Protector to restore unto the Barons of the Realm and other his Subjects All their Rights and Privileges for which the Discord began between the Late King and his People These Rights and Privileges were several times enquired into and ascertain'd by the Returns of the Knights who were charged to examine them were what were enjoy'd in the time of the Saxon Kings and especially under Edward the Confessor and what the Charters of King John and his own express'd For 't is ridiculous to imagine That William II. Henry I. Stephen and King John should pretend to an Arbitrary Power virtually who all came in by the Consent if not Election of the People We may see how a Favourite can Absolve a King in Law and Conscience too And what a pretty Creature a King is when Prerogative and Humour are Synonimous and he Acts by Advice of a single Person or Party counter to that of his Parliament Hence as the Historians say grew Storms and Tumults no quietness to the Subject or to himself nothing but Grievances all the long time of his Reign He displaceth his English Officers to make room for Foreiners and all the Chief Councellors Bishops Earls and Barons of the Kingdom are removed as distrusted that is for giving him Good Counsel and only Strangers preferred to their Places and Honors and Castles the King's House and Treasury committed to their Care and Government These Indignities put upon the Lords put them also upon Confederating to reduce the King to the sense of his former Obligations but to their Petitions he returns Dilatory and Frivolous Answers and to requite their Favours sends for whole Legions of Poictavins to Enslave the Nation and to crown the matter marries himself without Advice to a Daughter of the Earl of Provence by which he brought nothing but Poverty into this Kingdom Afterwards in the Long Story of this King we hear of nothing but Grievance upon Grievance Confederacy upon Confederacy Parliament upon Parliament and Christmas upon Christmas were kept here now there in as many Places as he call'd his Parliaments and to as much purpose Bickerings upon Bickerings and Battle upon Battle till it grew to that height That the Lords threaten'd to Expel him and his New Councels out of the Land and to create a New King and the Bishops threaten'd him with Excommunication whilst through a various Scene of Confusion and Hurly-Burly sometimes one Party being too peremptory sometimes t'other with an Interchangeable undecent Shuffling on the King's Side and a Rude Jealousy on the Lords and various Turns of Arbitrary Fraud and Obstinate Disputes for above Forty Years wherein Prerogative and Liberty grew Extravagant and Mad by turns till the Nation was brought to the last Gasp at length the King in the Fifty second Year of his Reign in most solemn manner confirms the Charters That Magna Charta which was granted in the Ninth Year and pretended to be avoided by reason of Infancy and the Statute of Marlebridge which he had granted upon his Second Coronation in the Twentieth Year Wherein Magna Charta and Charta de Foresta were confirm'd with this Clause Quod contravenientes graviter puniantur Upon which as is said Peace and Tranquillity ensued And these Charters have never since been Impugn'd or Question'd but Confirm'd Establish'd and commanded to be put in Execution by Thirty two several Acts of Parliament And from the Authority whereof no Man ought to be permitted to recede even in his Writing to flatter any King whatever and Sir Robert Filmer Dr. Brady and Mr. Bohun c. perhaps deserv'd as severe a Correction as Collonel Sidney for writing Books and Papers only for I do not think he deserv'd Hanging if not greater for their's were dispers'd by an ill-tim'd-publication whereas t'others lay still only in his Study We date our Non Obstantes from this King which Matthew Paris calls an Odious and Detestable Clause and Roger de Thursby with a sigh said it was a Stream deriv'd from the Sulphurious Fountain of the Clergy EDWARD I. I Know not whether this King may come up to the Character which some of our Historians give of him in all Respects yet without doubt he stands an Instance and Example of Princely Qualities and Virtues fit to be imitated and at least as he is stiled the Second Ornament of Great Britain And as a Wise Just and Fortunate because Wise and Just Prince who in regard of his Noble Accomplishments and Heroical and Generous Mind deserves to be ranged amongst the Principal and Best Kings that ever were as Walsingham and Cambden Polyd. Virgil and Others relate Baker divides his Acts into five Parts 1. His Acts with his Temporal Lords 2. His Acts with his Clergy 3. With Wales 4. With Scotland And lastly With France And First He gave his Lords good Contentment in the beginning of his Reign by granting them Easier Laws and particularly in the
others he himself made the Laws a Measure of his Prerogative It will not be worth Enquiry Whether he first Instituted a Parliament in the Form it now stands He raised Money in a Parliamentary way we find in his First Parliament at Salisbury he obtained Three Shillings upon every Hide of Land towards the Marriage of his Daughter with the Emperor although 't is said there these Aids were due by Common Law from the King's Tenants by Knight's Service viz. Aid to Ransom the King's Person Aid to make the King 's Eldest Son a Knight and Aid to Marry the King 's Eldest Daughter once And although this matter was ascertain'd afterwards by King John's Charter at Running-Mead yet following Kings have not been so tender and reserv'd in this Point If he may be said to be Cruel to his Brother Robert I 'm sure he was very Honourable towards Lewis of France when in England whither he came on his own Head notwithstanding he was Solicited and Tempted to make him away As to his Personal Virtues or Vices they were to himself If he fail'd in the Oeconomicks he had Troubles in his own House and whether his Misfortunes of this kind were occasioned by Judgments or the Follies of himself or Wife it is certain he had his share of them but he took so much care that the Nation knew but very few troubles during his Reign And as he obtained a Kingdom by a sort of Artifice so he used his Prerogative with Discretion STEPHEN THIS King's Reign was almost one entire Scene of Military Actions without any mixture of Civil Policy he did not live a Year to Enjoy or Manage Peace after his Agreement with Henry II. the Son of Maud And there was never any formal Meeting of the Body of the Estates in his time The Expences of his War were occasioned by a troubled Title and he maintained them by Confiscations and although he had continued Charges that way yet he required few or no Tributes from the People 'T is said he had another way of getting Money viz by causing Men to be Impleaded and Fined for Hunting in his Forests after he had given them Liberty to Hunt there For thus far at least the Kings Exercised an Absolute Prerogative only over the Beasts of the Forest Which is a Prerogative I confess they ought to Enjoy Indisputably HENRY II. THOUGH this King came to the Crown by the most Absolute Title and Clearest Right yet in Four and thirty Years time we do not find that he pretended to impose upon his People any Arbitrary Power but by Success and Policy he added to the Crown of England Scotland Ireland the Isles of Orcades Britain Poytiers Guyen and other Provinces of France And for all this he had only one Tax of Escuage towards his War with France His causing the Castles to be Demolished was a justifiable piece of Policy for the reason given as being Nurseries of Rebellion In the beginning of his Reign he refined and reformed the Laws and 't is said made them more Tolerable and Profitable to his People than they were before and what is better Governed himself by them We do not find the Punishments of Capital Offences or others were certain but variable and distinguished in the same Crime according to the degrees of Aggravation The Church-Chroniclers bestow a Judgment upon him for refusing to take the Protection of the Distressed Christians in Jerusalem offered to him by Heraclius the Patriarch and assign his Troubles at Home to that Cause but they might be mistaken and he might as he apprehended have had greater from his own Sons if he had gone Abroad upon that Errand And if the Church will forgive him the Story of Thomas Becket for he was otherwise very Civil to it the State had no reason to complain of him for he suffered neither his Wars nor his Pleasures to be Chargeable to the Nation nor his Concubines to be Spungers on the People RICHARD I. THERE is but little Observable in the Reign of this King with relation to the Subject at Home he being the greater part of it out of the Land If his Artifices of Raising Money were not Justifiable the occasion may at least Excuse him He obtained a Subsidy towards his necessary Charges of War what was properly called Taxation was by Parliament or by the Subjects own Contribution and Method of Charging themselves with as the Money raised for his Ransom If he may be charged with some slips in Justice he made it up in Courtesy which by the by goes a great way with Englishmen for 't is observed they may be Led tho' they will not well Drive And upon his return Home from the Holy Land we find the first thing he did was to give his Lords and People Thanks for their Faithfulness to him in his Absence and for their readiness to Supply him for his Ransom JOHN MOntaigne says in one of his Essays and he speaks it upon Observation of History That Women Children and Mad-men have had the Fortune to govern Great Kingdoms equally well with the Wifest Princes And Thucydides That the Stupid more frequently do it than those of better Understanding Whether this be an Argument of a Providential Disposing and Governing of Kingdoms I leave to those that are conversant that way Some Men perhaps may be apt to think it reflects Disgrace on Dignities if this be true Some Kings are involv'd in such a Cloud of Circumstances of Difficulty and Intrigues that there is no looking into them nor making any Judgment of their Actions Speed guesses of King John That if his Reign had not fallen out in the time of so Turbulent a Pope such Ambitious Neighbour Princes and such Disloyal Subjects nor his Story into the Hands of Exasperated Writers he had appear'd a King of as great Renown as Misfortunes This is civilly and gently said This is certain This King as all others when once they have broke through their Coronation-Oath presently became as it were infatuated and deaf to all good Counsel stoop't to every thing that was mean and base and having once laid aside his Native Honour run into all Dishonourable Sordid Actions The History represents him pursuing his Profit and even his Pleasures by all manner of Injustice He prosecuted his Brother Geoffry Archbishop of York and took from him all he had only for doing the Duty of a Wise and Faithful Councellor Hence his Lords grew Resty and refused to follow him into France unless he would restore to them their Rights and Liberties which he had invaded And when he shuffled with them in the Grant of their Demands What Wars what Miseries did not follow Wars at Home Foreiners call'd in the Nation plunder'd and spoil'd Money procured by Base poor-spirited Tricks He on one Side forc'd to truckle to the Pope and as is said to submit to somebody worse his Subjects on the other hand calling in to their Relief as they thought a Foreiner fetch